SDNY COURTHOUSE, June 27 – Settlement is near, it seems, for a long standing lawsuit involving Nissan dealership that has given rise to at least three appeals to the Second Circuit Court of Appeals, and over 600 entries in the docket before U.S. District Court for the Southern District of New York Judge Lorna G. Schofield.
On June 27 the final pre-trial conference was set, and Inner City Press was there. The proceeding was moved into Judge Schofield's robing room, as happened ten day ago for a criminal sentencing, see below. But this time Judge Schofield's Deputy said the proceeding was open, and directed the Press to sit on a bench in the cozy robing room with its views of Foley Square.
The counsel who had signed the joint pretrial order were there, for Nissan North America, Inc. and for Gary A. Flom, Alexander A. Boyko and Veniamin Nilva (who amid health reasons has yet to sign off on the settlement).
Judge Schofield was informed that in the hallway outside her courtroom an agreement in principle had been initialed. She asked that she be sent a letter formalizing it by July 9 and inquired into the health of Veniamin Nilva.
The case began in the SDNY in January 2017 with the filing of sealed documents: "Exhibit C, 'The Agreement.'" Nissan filed a 54 page answer in March 2017 complete with counter-claims against Nissan of Mount Kisco. By May the interlocutory appeals began, along with third party complaints.
Judge Schofield issued an order that, among other things, "regarding Topic Five (the $3 million working capital loan), Dealers contend that the breach of the Additional Agreement was caused by NNA’s failure to provide adequate 'subsidies.' (Dkt. No. 611 at 1–2) Dealers assert that the failure to provide these subsidies was a breach of the implied covenant of good faith and fair dealing. (Dkt. No. 611 at 2) To the extent that the working capital loan constitutes one of the above-referenced subsidies, this argument is unavailing. Setting aside the fact that Dealers did not assert breach of the implied covenant of good faith and fair dealing as an affirmative defense, the Court’s February 26, 2019, Opinion and Order forecloses this defense as a matter of law. See ACIM NY, L.L.C. v. Nissan North America, Inc., No. 17 Civ. 729, 2019 WL 935424, at *6–7 (S.D.N.Y. Feb. 26, 2019) (holding that NNA’s failure to provide the $3 million working capital loan did not constitute a breach of the implied covenant of good faith and fair dealing)."
In February 2019 Judge Schofield had referred it all to the Mediation Program. On June 27 she said she is not involved in that process beyond the referral. But the parties all praised the mediator, Joe Saltarelli and a session he held at Hunton & Williams. Among the June 27 comments or shout-outs: Saltarelli "got us started;" he "laid the foundation." Judge Schofield said this praise should be better known. Consider it done. The case is In re Nissan Dealership Litigation, 17-cv-00729 (Schofield).
Ten day before, also before Judge Schofield: a sentencing of a defendant seeking time served, seemingly for cooperation with the government, was abruptly declared "sealed" bySDNY Judge Schofield on June 17.
She said she was going to seal the transcript, but that once this reporter walked into her open courtroom 1106 in 40 Foley Square, she moved the entire proceeding into her robing room, closed to the Press and public.
Now on June 18 Inner City Press hasrequested the name and number of the case, and that all portions that do not need to be redacted or sealed be provided or placed in the docket, citing in support this its requests: sentencing proceedings are presumptively open in the Second Circuit. See United States v. Alcantara, 396 F.3d 189, 196 (2d Cir. 2005) ("There is little doubt that the First Amendment right of access extends to sentencing proceedings.").
Before closing a proceeding to which the First Amendment right of access attaches, the judge should make specific, on the record findings demonstrate that closure is essential to preserve higher values and is narrowly tailored to serve that interest. See United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988). United States v. Cojab specifically dealt with hearings (in that case, a pretrial hearing) conducted in the robing room.
Inner City Press is pursuing this because it is a precedent and trend. On June 18 affable SDNY Magistrate Judge Sarah Netburn declared a proceeding in Courtroom 5A sealed with "delayed docketing;" in her two days in the Magistrates Court this week not a single filing has been made available on PACER. There's more - watch this site.
On June 17 when Judge Schofield, her Courtroom Deputy James Street and the shackled defendant, Assistant US Attorneys and US Marshals emerged twenty minutes later, Judge Schofield said only, "We're adjourned." There was no disclosure of the outcome of the proceeding - as Inner City Press walked in, the defendant's lawyer was asking for time served."
Then Judge Schofield said she wanted to "shake hands with our visitors" and proceeded to do just that with the two other people in the gallery. Inner City Press left.
No one where on the electronic board in the SDNY lobby at 500 Pearl Street was any proceeding before Judge Schofield at that time list. Nor in the day's PACER calendar.
So it is both a confidential sentencing, and a confidential case?
Judge Schofield's Rules for Criminal Cases, ironically, provide that there is a presumption that all sentencing submissions are public, and that if anything is redacted only those pages with redactions can be withheld from the public docket.
But no such distinction is possible when an entire proceeding is moved into the judge's robing room barred to the press and public, with no notice or opportunity to be heard. Inner City Press will have more on this - see also @InnerCityPress and the new @SDNYLIVE.
Before Judge Schofield: Steven M. Calk of FDIC-regulated Federal Savings Bank was presented and arraigned on May 23 for financial institution bribery for corruptly using his position with FSB to issue $16 million in high-risk loans to Paul Manafort in a bid to obtain a senior position with the Trump administration, namely Undersecretary of the Army.
Back on May 23 Magistrate Judge Debra Freeman accepted the government's proposal of $5 million bond with no co-signer (although that is usually required for moral suasion) and travel allowed throughout the United States (though more defendants are usually confined to the Soutern and Eastern District of NY and one other district). Money talks.
Afterward in front of the SDNY courthouse Inner City Press asked Calk's lawyers Daniel Stein and Jeremy Margoles about Manafort saying he had misstated his financial situation to get the FSB loans. When did Calk know? They did not answer. Video here, Facebook video here. Inner City Press' Alamy photoshere.
Now in May 28 letter to District Judge Lorna G. Schofield, the government has requested the motions directed of their indictment of Calk be filed by July 12. Judge Schofield granted it only in part, saying that by June 21 Calk "shall file a pre-motion letter with a briefing description of any motion(s) he intends to file." While the OCC has yet to sufficiently answer, and is trying to hinder Inner City Press' reporting, we will stay on this case.
On May 23, still from the SDNY courthouse covering other cases including one involving the death penalty, Inner City Press reportedfinding no U.S. Home Mortgage Disclosure Act data for "Federal Savings Bank." But there's more.
The Federal Savings Bank's website, while providing a generic link to the FDIC, and a statement "Member FDIC," has no link for the U.S. Community Reinvestment Act. (Nor does it mention the indictment of Stephen Calk, simply listing his brother John Calk now as CEO and Vice Chairman. Who is the chairman?)
It lists a loan production office on Avenue J in Brooklyn, and two deposit taking braches in Illinois. Did it see some exemption from the CRA and other consumer protection laws? From fair lending laws?
Earlier on the morning of May 24 Inner City Press asked the FDIC, "Having covered yesterday's arraignment of the Chairman of The Federal Savings Bank in the SDNY courthouse, including the FDIC's involvement, I checked the bank's website and found "Member FDIC" but no mention of the Community Reinvestment Act."
The FDIC's spokesperson David Barr, to his credit, responded quickly, writing to Inner City Press: "The Federal Savings Bank, Chicago, is regulated by the Office of the Comptroller of the Currency. They would be responsible for CRA and regulatory oversight. You should contact the OCC for more information."
Now the OCC under Comptroller Joseph Otting has done everything possible to block the release of information, denying FOIA fees waivers and expedited treatment, refusing comments. But for now online the OCC has said this about The Federal Savings Bank: "While TFSB originated a substantial majority of its loans outside of its AAs; the bank’s business strategy is to operate as a mortgage banking entity with a nationwide presence and market place. Taking the bank’s business strategy into consideration the bank’s performance under this lending criterion is deemed reasonable." Reasonable? Bribery, too, seems to have been part of its business strategy, right under the nose of the OCC of Otting.
Before 2 pm on May 24 Inner City Press in writing asked Otting's OCC: "This is a Press question for the OCC, from Inner City Press... Please confirm that The Federal Savings Bank is subject to HMDA, and/or if it is below a threshold, as I can find no data in its name on FFIEC.gov. Also, please today provide as an OCC response to the Press this OCC-regulated bank's CRA public file and other information in the OCC's possession concerning the bank's CRA and fair lending performance. Is it normal for a bank not to mention these things on its website, nor to provide any link to its actual regulator, the OCC, but only to the FDIC? Please explain what steps the OCC is taking beyond Stephen Calk no longer being the CEO. What about his brother?"
More than three hours later, even to the questions at the end, the OCC had only provided this: "We are reviewing your questions, but we may not be able to respond by your deadline. Regards, Stephanie Stephanie Collins Manager, Media Relations Public Affairs Operations Office of the Comptroller of the Currency." This is the same OCC which has delayed FOR MONTHS providing basic information about a merger it has now already rubber stamped.
On the morning of May 28 Inner City Press received from the OCC a statement that The Federal Savings Banks is subject to HMDA - how they are listed in the HMDA database remains a question - and this: "Question: Is it normal for a bank not to mention these things [CRA and HMDA] on its website, nor to provide any link to its actual regulator, the OCC, but only to the FDIC? [OCC answer:] This question is best directed to the bank."
So wait: Otting's OCC leaves it entirely up to the banks it ostensibly regulates whether to mention on their website and presumably branches CRA, HMDA or even the OCC where consumers could complain? We'll have more on this.
Stephen Calk was quoted, at least in 2012, opposing regulation: "As Mr. Stephen Calk writes in the September 7, 2012 edition of Origination News: “Basel III is designed to level the playing field among major banking institutions that operate internationally. Force-feeding these same rules to community banks in the United States is unnecessary and in fact counter-productive, particularly in the current economic environment.” Basel III is one thing. But no Community Reinvestment Act?
The Federal Savings Bank lists locations - and bankers - in Arizona - Scottsdale California - Irvine Colorado - Fort Collins Delaware - Selbyville Florida - Sarasota Illinois - Chicago Illinois - Lake Forest Illinois - Oak Brook Illinois - Park Ridge Indiana - Bloomington Indiana - Indianapolis Kansas - Overland Park Louisiana - Laplace Maryland - Annapolis Maryland - Timonium CD Massachusetts - Lawrence New Jersey - Hackensack New Jersey - Lakewood New York - Brooklyn New York - Melville New York - New York New York - Queens North Carolina - Raleigh Ohio - Columbus Rhode Island - South Kingstown Tennessee - Nashville Virginia - Alexandria Virginia - Fredericksburg Virginia - Newport News Virginia - Richmond Virginia - Vienna Virginia - Warrenton... We'll have more on this.
In the indictment press release, FDIC OIG Special Agent-in-Charge Patricia Tarasca said, “Today’s indictment charges Stephen Calk with misusing his position as Chairman and CEO of a bank for his own personal gain. The FDIC Office of Inspector General remains committed to investigating cases where bank officials cause multimillion-dollar losses to a financial institution and undermine its integrity.” (The FDIC stands to be the lead regulator of BB&T whose money laundering enforcement action was just terminated by the Federal Reserve to facilitate merger with Suntrust, click here for that and Inner City Press' FOIA request and appeal.)
Earlier still in the May in the SDNY, Congressman Christopher Collins (R-NY) waived his right to be present for a May 3 hearing in the criminal insider trading case against him held past 5 pm in the SDNYcourtroom of Judge Broderick. On May 10, Judge Broderick started on l'affaire Collins at 2 pm, after a case against BuzzFeed (Inner City Press coverage here). Early in the proceeding, before two shackled inmates were led in leading to a brief suspension of the white shoe SEC Congressman matter, Broderick made a joke about Donald Trump and evasive legal moves. I'm not going there, said one of the participants in Collins, who was an early endorser of Trump. Broderick said, "I should have either - but it is what it is."
Three hours later, during which Inner City Press in full disclosure went one story down in the courthouse to cover a Fatico hearing about threats in the MCC, Judge Broderick was setting the time for Collins' lawyers to make motions. He arrived on four weeks after he rules on discovery, with the SEC to provide whatever he directs to the defense one week after the ruling. I'm not saying you're going to get anything, Judge Broderick said. Collins' lead lawyer said he is a optimist. More on Patreon; watch this site.
Collins' team of lawyers have made a slew of suggestions to Judge Broderick on what discovery to seek from the U.S. Attorney's office, from communications with the SEC to information about real estate, Cameron Collins and Lauren Zarsky and their sales of Immunotherapeutics stock after MIS416, aimed at secondary multiple sclerosis, failed the Drug Trial and Rep Collins made his calls from the White House Congressional picnic.
On May 3 Judge Broderick was urging wide disclosure by the government, whether characterized as 3500 material or under Brady or Giglio. The notes to be produced, he said, didn't have to been entirely contemporaneous.He had a series of questions for the U.S. Attorney which he did not get through as it approached 6 p.m. and his courtroom deputy had gone for the day.
Collins' lead lawyer from BakerHostetler, Jonathan R. Barr, directed Broderick to a decision by SDNY Judge Jed Rakoff during the Gumpta case, and Broderick said that he would read it. He confessed he had himself looked up applicable cases on Westlaw, adding that he might have missed some cases. This case is USA v. Collins, et al., 18-cr-00567 (VSB). More on Patreon, here.
Judge Broderick told Collins' lawyers to expect to come back in a week's time on Friday, May 10. One of them said he would only be returning to the United States that morning; another said that he then would be leaving for the same place his colleague had been: Argentina.
Judge Broderick told Collins' lawyers to expect to come back in a week's time on Friday, May 10. One of them said he would only be returning to the United States that morning; another said that he then would be leaving for the same place his colleague had been: Argentina.
Thus is big money, and big politics, law done in the SDNY.
